125 Mo. App. 269 | Mo. Ct. App. | 1907
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The judgment was for plaintiff in the sum of $1,229 and the cause is here on the appeal of defendant.
The evidence of plaintiff, in substance, shows that on April 30,1904, at about ten o’clock p. m., she became a passenger on an electric car operated by defendant on the Indiana avenue line of its street railway system in Kansas City. ■ She boarded the car at Thirteenth and Main streets and her destination was Nineteenth street and Tracy avenue. The car traveled in an easterly direction while running on Nineteenth street and as it approached Tracy avenue, plaintiff first pushed an electric button to give the signal to stop and, finding that the bell did not ring, turned to a conductor who was standing in the rear part of the car and asked him to give the signal. He gave it, and in response thereto the motorman brought the car to a full stop at Tracy avenue, but on account of the darkness, the witnesses for plaintiff could not say at what particular point on the crossing. Plaintiff waited until the car came to a standstill before leaving her seat and then proceeded with due
On behalf of defendant, the evidence tends to show that as the car approached Tracy avenue, a signal to stop was given and the conductor in charge of the car testifies that he was the person who gave the signal and that it was given for the purpose of permitting passengers to alight. In obedience thereto, the car did come to a full stop at the east line of Tracy avenue, and several passengers alighted from it. One of the witnesses who claims to have observed plaintiff, states that two departing passengers preceded and two followed her. All of the witnesses for defendant agree in the statement that plaintiff attempted to step to the street before the car had come to a stop and while it was going at the rate of two or three miles per hour. The motorman who was called by defendant as a witness, testified, in effect, that he brought the car to a standstill at the east line of Tracy avenue, the usual stopping place.
The negligence charged in the petition is “that on or about April 30, 1904, and at about the hour of 10:30 p. m. of sai'd day, plaintiff was a passenger on an electric car of said defendant, east bound on said East Nineteenth street, and when said car reached a point at or
It is urged by defendant that an instruction in the nature of a demurrer to the evidence which it asked at the close of the evidence should have been given.- It is claimed that the cause of action pleaded is not- founded on a wrongful act of the defendant in starting a car which had stopped at a regular station for the purpose of receiving and discharging passengers, but is based on negligence in starting a car which had stopped at some point other than such regular stopping place. It must be conceded no specific averment appears in the petition that the place at which the car stopped was á regular station and that the cause pleaded might have been sustained by proof of negligence in starting the car while plaintiff was alighting, though it had been stopped at some place not designated or established as a regular station. But defendant is in error in assuming that the cause pleaded is restricted in its scope to that kind of a cause: The omission of an allegation respecting the character of the place at which the car stopped had no other effect than to expand the limits of the cause pleaded to include, not only negligence involved in an act
Not only does the evidence sufficiently show that " the point at which the car stopped was a usual stopping place, but it is admitted by the conductor that the stop was made for the express purpose of permitting passengers to depart. Actual knowledge on his part of this contemplated action of passengers imposed on hi'm the performance of the duty of holding the car stationary until all of them had reached the street in safety, and the extent and character of this duty was in nowise lessened or changed by the fact — had it been a fact — that the car, in obedience to his signal, stopped at a point not designated or used as a regular stopping place. His compliance with the request of passengers to stop the car was an invitation to them to depart at that place and, knowing they were acting on this invitation, he had no right to give the signal for it to start until he had seen that all of them had safely alighted. So that, under the conceded facts before ns, it is really immaterial whether or not the stop was made at a regular station. And, if we believed that the cause of action pleaded embraced no wider scope than that claimed by defendant, nevertheless, Ave would hold the evidence sufficient to sustain the negligence averred.
We give ready sanction to the doctrine that where
What we have said answers the objections made to the first instruction given on behalf of plaintiff, with one exception. It is said that it was error to include in the hypothesis on which a verdict should be returned for plaintiff the fact that the start was made “before plaintiff had a reasonably sufficient time to leave said car.” There is no allegation of this fact in the petition, and the point is made that its incorporation in the instruction enlarged the cause of action pleaded, but this is not so. Whether or not the car stopped a sufficient time to permit plaintiff to accomplish her departure in safety is entirely immaterial to her right of recovery. In the operation of street cars, the conductor in charge has no right to assume, from the fact that a car has been held stationary for a time reasonably sufficient to enable passengers to alight, that such passengers have accomplished their exit in safety, but is charged with the duty of looking to the places of exit before giving a signal to start to see that none is in the act of alighting. [Nelson v. Railway, 113 Mo. App. 702.] The presence in the in
Complaint is made of the giving of instructions asked by plaintiff on the issue of contributory negligence. It is conceded the instructions, in themselves, are unobjectionable but it is argued that as none of the evidence tended to accuse plaintiff of negligence, it was improper and prejudicial for the court to treat her conduct as an issue to be submitted to the jury. Concede it is true, as defendant says, that the only effect of the evidence offered by it was to disprove the cause of action pleaded by showing that plaintiff was not injured by the sudden starting of a stationary car while she was in the act of alighting, but by her voluntary act in stepping from the car while it was running at.an appreciable rate of speed, and that the rejection by the jury of this contention left the evidence barren of any fact or circumstance on which a charge of negligence against plaintiff reasonably might be founded, the answer to this argument is that defendant, in its answer, raised the issue of contributory negligence and chose to permit the case to be submitted to the jury without attempting to withdraw that issue from their consideration.. Plaintiff was entitled to have the jury instructed on every issue tendered by defendant and we fail to perceive how defendant could have been injured by the fact that the court treated the evidence as possessing some weight to sustain an affirmative issue presented by defendant when, in fact, it was devoid of such probative substance. In asking the instructions, plaintiff, in submitting her own conduct to the jury,, merely assumed a greater burden than the evidence warranted, as she was entitled to an instruction removing that question from the field of debate. Had defendant feared then, as it appears to
And, further, we may add that we do not agree with defendant that plaintiff should be held in law to have been free from negligence.' All of the facts and circumstances in proof (some of which we have not mentioned in the statement) present her conduct as a subject about which reasonable minds well might differ, and we suspect that if the learned trial judge, at the request of plaintiff, had peremptorily instructed the jury to find for her on the issue of contributory negligence, we now would be confronted with a fax more serious question than that before us.
The last objection made by defendant relates to a ruling of the learned trial judge in the admission of evidence offered by plaintiff. A physician who treated plaintiff for her injuries was asked by counsel for plaintiff to give testimony as an expert concerning the natural results to be anticipated from the disorder under which the witness found plaintiff to be suffering. The question, though objected to by defendant, was proper and need not be repeated, as we do not understand defendant now claims that error was committed in the overruling of its objection to the question. The complaint of defendant relates to the answer given by the witness which, in part, was responsive to the question, but which contained statements that were unresponsive and of no evidentiary value. The record does not disclose that defendant moved to strike out the improper portion nor made objection to it of any kind. Had counsel for defendant moved to strike out this unresponsive matter thus injected by the witness, we must assume the trial court would have sustained
Judgment is affirmed.